American Indians Born in Canada and the Right of Free Access to the United States

Transcription

1 American Indians Born in Canada and the Right of Free Access to the United States Greg Boos Attorney, Cascadia Cross-Border Law and Adjunct Professor, Canadian-American Studies, WWU Greg McLawsen Principal Attorney, Puget Sound Legal, P.C. Research Report No. 20 October 2013 Border Policy Research Institute Western Washington University Bellingham, Washington

2 About the Authors Greg Boos practices at Cascadia Cross-Border Law (www.cascadiaimmigrationlaw.com/), an immigration law firm with offices in Bellingham, WA and Anchorage, AK. A results-oriented advocate with 30+ years of professional experience, Greg has been named one of the world s leading practitioners of U.S. business immigration law by the International Who s Who of Corporate Immigration Lawyers. Based on peer reviews, Martindale-Hubbell has awarded Greg an AV Preeminent rating, a testament to the fact that his colleagues rank him at the highest level of professional excellence. He writes on a variety of immigration related topics. Greg McLawsen is the principal attorney of Puget Sound Legal, P.C. in Tacoma, Washington (www.pugetsoundlegal.net). Greg serves as treasurer for the Washington Chapter of the American Immigration Lawyers Association and has been recognized as a Rising Star by the Chapter. His research interests include the intersection of psychology and immigration law. Previous publications are available at The authors thank research assistant Heather Fathali for her creativity and dedication brought to this project. Heather is a third-year law student at Seattle University. About the Border Policy Research Institute The BPRI focuses on research that informs policy-makers on matters related to the Canada-U.S. border. Policy areas of importance include transportation and mobility, security, immigration, energy, environment, economics and trade. Border Policy Research Institute Western Washington University 516 High Street Bellingham, WA (360) This report is accessible at: Copyright 2013 Greg Boos and Greg McLawsen. All rights reserved.

3 Executive Summary In 1794, the United States and Great Britain negotiated the Jay Treaty, established in part to mitigate the effects of the recently established boundary line between Canada and the United States on the native peoples who suddenly found their lands bisected. The rights and benefits originally set out by the Jay Treaty are now codified in statute, and continue to bestow upon Canadians with a 50% native bloodline (euphemistically referred to as American Indians born in Canada in U.S. immigration law) the right to freely pass the border and remain in the United States for any purpose, virtually unrestricted by the Immigration and Nationality Act. This article explores the scope of the statutory term American Indian born in Canada, expounding on the expressly racial as opposed to cultural or political nature of the status, with a 50% native bloodline and birth in Canada being the essential elements. The bloodline requirement is broader than tribal membership; as such, even Canadians who are not members of an Indian tribe may be eligible what matters is that the person possesses the requisite bloodline. In outlining the procedure for documenting status as an American Indian born in Canada, and what specific rights and benefits accompany the status, this article suggests that inconsistent and inaccurate information disseminated by government agencies complicates an already sensitive and misunderstood issue. In the wake of post-9/11 security enhancements, it has become increasingly difficult for American Indians born in Canada to exercise their Jay Treaty rights to the extent they are entitled. In conclusion, this article emphasizes the importance of harmonizing the often-competing interests of national security, cross-border commerce, and the preservation of indigenous cultures to reflect the intent of the Jay Treaty.

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5 Table of Contents Introduction... 1 I. History... 2 A. The War of 1812 and continuing validity of Jay Treaty rights... 3 B. A determination based on racial considerations... 6 C. No reciprocal right to enter Canada... 8 II. Eligibility A. Scope i. Dependents ii. Bloodline exemption for pre-ina entrants B. Indian, Inuit, Métis, and métis III. Kickapoo and Other Southern Borderlands Peoples IV. Benefits A. Free passage B. Exemption from removal C. Cross-border commerce D. Public benefit programs E. Civil damages F. Affirmative defense to illegal entry/reentry V. Procedures A. Documenting status at a port of entry B. Documenting status within the U.S C. Work authorization D. Western Hemisphere Travel Initiative (WHTI) VI. Conclusion Exhibit I. A reproduction of John Jay s diplomatic credential for presentation to British authorities Exhibit II. A reproduction of an announcement summarizing the conclusion of the Jay Treaty Exhibit III. A reproduction of George Washington s analysis of Article III of the Jay Treaty Exhibit IV. A reproduction of a Jay Treaty negotiator s notes related to Indian trade Exhibit V. A reproduction of a portion of an early draft of treaty provisions with particular reference to commerce between Indians, settlers, and British subjects... 46

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7 American Indians Born in Canada and the Right of Free Access to the United States By Greg Boos and Greg McLawsen Certain American Indians born in Canada 1 (ABCs) enjoy access to the United States unrestricted by the Immigration and Nationality Act (INA), a right stemming from the Jay Treaty (1794). 2 An examination of this right, reflected by codification as 289 of the INA, reveals qualifying ABCs are entitled to privileges unparalleled by all but United States citizens to enter and remain in the U.S. for the purpose of employment, study, retirement, investing, and/or immigration 3 or any other reason. Jay Treaty rights 4 have substantial implications for Canadians desiring to access the U.S. The 2011 Canadian census recorded roughly 1.4 million individuals who self-identified as aboriginal. 5 With Canada s current population at about 33.5 million people, 6 roughly one out of every thirty Canadians has a lineage to which Jay Treaty eligibility may attach. 7 Part I of this article outlines the legal roots of Jay Treaty rights, their development over time, and different theories regarding the basis for these rights as they exist today. Part II explores the statutory definition of American Indians born in Canada and relevant regulations, and evaluates the applicability of Jay Treaty rights to the aboriginal populations of Canada. Part III analyzes the extension of similar rights to the Texas Band of Kickapoo Indians, and suggests an extension of similar benefits to other indigenous borderlands peoples is past due. Part IV explores the practical effects of holding ABC status, including exemption from most U.S. immigration restrictions, 1 American Indians born in Canada (ABC) is a term of art arising from statute. See Part II, infra. For consistency with this term of art, this article will continue to use the term Indian rather than American Indian, Native American, Native, Alaskan Native, First Nations, or other alternatives except within the context of direct quotes or where otherwise indicated. 2 Treaty of Amity, Commerce, and Navigation, Gr. Brit.-U.S., Nov. 19, 1794, 8 Stat. 116, 130 [hereinafter Jay Treaty after John Jay, its chief U.S. negotiator]. A reproduction of John Jay s diplomatic credential as presented to British authorities is attached as Exhibit I. 3 EMBASSY OF THE UNITED STATES, OTTAWA, CANADA, First Nations and Native Americans, (last visited Sept. 12, 2013). 4 Throughout this article we use the term Jay Treaty rights to describe the bundle of rights conferred on ABCs that began with the Jay Treaty; however we are cognizant that the legal source of the rights as they exist today is disputed. See infra Part I.A. 5 Kristy Kirkup, 2011 Census: Aboriginal Population Grows to 1.4M, Reports Statistics Canada, TORONTO SUN (May 8, 2013), available at (last visited Sept. 14, 2013). 6 STATISTICS CANADA, Population and dwelling counts, for Canada, provinces and territories, 2011 and 2006 censuses, available at (last visited Sept. 14, 2013). 7 The number of ABCs applying to document their status in the U.S. appears to be small. In fiscal year 2011, only 231 ABCs obtained recognition of their status. U.S. DEP T OF HOMELAND SEC., 2011 Yearbook of Immigration Statistics, p. 24, Table 7 (2012), available at (last visited Sept. 14, 2013). No statistics are available for how many individuals may ultimately be eligible for recognition of Jay Treaty rights, but have chosen not to apply or do not understand their entitlement. See infra Part V.A. 1

8 reciprocity (or lack thereof) by Canada, and implications for traditional forms of cross-border commerce. Part V includes an overview of the procedures for documenting legal status as an ABC, then explores the erosion of Jay Treaty rights due to the Western Hemisphere Travel Initiative (WHTI) and other post-9/11 security enhancements, and suggests responses to this trend. In conclusion, Part VI submits that inclusion of aboriginal border crossing rights in the ongoing Beyond the Border process is an integral first step to ensuring ABCs the full scope of Jay Treaty rights. I. History Long before European contact, travel across what is now the U.S./Canada border was an element of daily life for numerous North American Indian tribes. The international boundary was established by Great Britain and the U.S. in the Peace of Paris, 8 dividing the North American lands claimed by the two countries. This boundary also ran through the center of Indian-occupied lands. The Indians not only resented a boundary passing through territory they had traditionally occupied or traversed, but also viewed the newly established border as an infringement of their sovereign rights. In 1794, to address issues unresolved by the Peace of Paris or arising thereafter, Great Britain and the U.S. negotiated the Jay Treaty. As part of this treaty, they sought to relieve tribal tensions arising from imposition of the new boundary. 9 In relevant part, Article III of the Treaty provides: It is agreed that it shall at all times be free to his majesty s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson Bay Company only excepted)... The Treaty also provided Indians with relief from import duties, at least regarding personal items. 10 The Jay Treaty did not create a new right for the continent s Indian population; it simply recognized the Indians pre-existing right to move freely across the U.S./Canada border. 11 In 1796, an explanatory provision was added to the treaty providing that no further treaties should derogate 8 The Definitive Treaty Between Great Britain and the United States of America (Treaty of Paris), Gr. Brit.-U.S., Sept. 3, 1783, available at (last visited Sept. 14, 2013). A reproduction of an announcement summarizing the conclusion of the Jay Treaty is attached as Exhibit II. 9 In his analysis of Article III of the Jay Treaty, George Washington noted, The instructions do not mention this. but I thought it might prevent disputes in future & would have an immediate good effect with the Indians. George Washington Papers at the Library of Congress, : Series 4, General Correspondence , Treaty of Amity and Commerce with Great Britain, October 1795, Analysis of Articles, available at (last visited Sept. 14, 2013). A reproduction of Washington s analysis is attached as Exhibit III. 10 Id. ( nor shall Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. ). 11 McCandless v. United States ex rel. Diabo, 25 F.2d 71, 72 (3d Cir. 1928) aff'd 25 F.2d 71 (3d Cir. 1928); Akins v. Saxbe, 380 F. Supp. 1210, 1219 (D. Me. 1974). 2

9 from the rights guaranteed by Article III. 12 During the War of 1812, Jay Treaty rights were suspended. The Supreme Court of the United States has held the War of 1812 abrogated the Jay Treaty, and that following the war, the Treaty of Ghent 13 revived the rights of native tribes predating that conflict. 14 However, several alternative views on this point are discussed below. A. The War of 1812 and continuing validity of Jay Treaty rights Despite a Supreme Court opinion declaring the War of 1812 abrogated the Jay Treaty and that the Treaty of Ghent revived Jay Treaty rights, 15 a wide range of theories dispute these points. Some argue the rights were indeed abrogated by the War of 1812 and revived by the Treaty of Ghent, later to be reaffirmed by statute. 16 Others argue the Treaty of Ghent did not revive the Jay Treaty, and Jay Treaty rights exist now only by virtue of statute. 17 Still others maintain the Jay Treaty rights were permanent in character and could not be abrogated by war, with the Treaty of Ghent reaffirming rights already in place. 18 The Supreme Court of Canada s (SCC) decisions regarding the validity of Jay Treaty rights 19 have been informed by the fact that the Canadian Parliament has never enacted enabling legislation required for the Jay Treaty to have force of law in Canada. 20 Canada s Department of External 12 McCandless, 25 F.2d at 74; Jay Treaty, supra note 3, at (Explanatory Article added May 4, 1796). 13 Treaty of Peace and Amity between His Britannic Majesty and the United States of America (Treaty of Ghent), Gr. Brit.-U.S., Art. 9, December 24, 1814, 8 Stat. 218, 22 23, available at (last visited Sept. 14, 2013). 14 Karnuth v. United States ex rel. Albro, 279 U.S. 231 (1929) (holding the War of 1812 abrogated the Jay Treaty passage right). 15 Id. 16 See, e.g., Dan Lewerenz, Historical Context and the Survival of the Jay Treaty Free Passage Right: A Response to Marcia Yablon- Zug, 27 ARIZ. J. INT'L & COMP. L. 193 (2010) (arguing the treaty right survives after having been restored by the Treaty of Ghent, and that it also exists in statute). 17 See, e.g., Marcia Yablon-Zug, Gone but not Forgotten: The Strange Afterlife of the Jay Treaty's Indian Free Passage Right, 33 QUEENS L.J. 565 (2008) (arguing the right is exclusively statutory). United States Customs courts have held that within the scope of their jurisdiction no Jay Treaty rights survive; they maintain that the Jay Treaty was abrogated by the War of 1812, and that the Treaty of Ghent was non-executing and never enacted by legislation. See infra text accompanying notes McCandless v. United States ex rel. Diabo, 25 F.2d 71, 73 (3d Cir. 1928) aff'd 25 F.2d 71 (3d Cir. 1928) ( We think, therefore, that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace. ); United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 662 (W.D.N.Y. 1947); infra text accompanying note 26. Additionally, there is the presumption regarding unilateral treaty abrogation under domestic law that clear evidence is required that Congress actually considered and acted to abrogate the treaty in question. Thus, in the absence of a clear statement of congressional intent to abrogate a treaty, courts have held that action that appears to be inconsistent with a treaty does not necessarily provide evidence of a clear congressional intent to abrogate the treaty. Howard J. Vogel, Rethinking the Effect of the Abrogation of the Dakota Treaties and the Authority for the Removal of the Dakota People from Their Homeland, 39 WM. MITCHELL L. REV. 538, 561 (2013). 19 See, e.g., Francis v. The Queen, [1956] S.C.R In order for a treaty to have force in Canada, implementing legislation is required. Canada s status as a dualist state and the effect that status has on the Jay Treaty was made clear in Francis v. The Queen. See id. The terms monism and dualism have been used to describe different types of domestic legal systems. OXFORD UNIVERSITY, THE OXFORD GUIDE TO TREATIES, 368 (Duncan B. Hollis ed., Oxford Univ. Press 2012). In dualist States, which include Canada and 3

10 Affairs once concluded the Jay Treaty might be in force in Canada (implying the War of 1812 did not abrogate the Jay Treaty), except for the fact that enabling legislation was never enacted to make it effective. 21 The Canada Treaty Information webpage lists the Jay Treaty as a bilateral treaty with the U.S. that has been only partially terminated, 22 begging the question of which articles of the Jay Treaty Canada considers viable. The U.S. Department of State (DOS) lists both Article III of the Jay Treaty and the Treaty of Ghent as in force. An entry for the Jay Treaty appears under DOS listings of treaties in force with both Canada and the United Kingdom (with the U.K. entry indicating the treaty is in force with Canada), while the Treaty of Ghent only appears under its listing of treaties in force with Canada. 23 Unlike the U.S. and Canada, the United Kingdom does not maintain a list of treaties in force. However in 1815, Britain s Earl Bathurst, His Majesty s Principle Secretary of State for War and the Colonies, asserted the Government of Great Britain knows of no exception to the rule that all Treaties are put an end to by a subsequent War between the same Parties. 24 A handwritten volume almost all other British Commonwealth States, no treaties have the status of law in the domestic legal system;... all treaties require implementing legislation to have domestic legal force. In fact, courts in dualist States have no authority to apply treaties directly as law. If the legislature has enacted a statute to incorporate a particular treaty provision into national law, courts apply the statute as law; and they frequently consult the underlying treaty to help construe the meaning of the statute, therefore applying the treaty only indirectly. Id. at By contrast, the U.S. is a monist State. Id. at 370. [In] [m]onist States... some treaties have the status of law in the domestic legal system, even in the absence of implementing legislation. Id. at 369. The Supremacy Clause of the U.S. Constitution establishes the Constitution, federal statutes, and U.S. Treaties as the supreme law of the land. U.S. Const. art. VI, cl Letter from W.H. Montgomery, Director, Legal Advisory Division to Joyce A. Green, Researcher, Native American Studies, University of Lethbridge Alberta (September 7, 1978) ( Our conclusion is that the following articles of the Jay Treaty... may still be in force for Canada: Article 3 (so far as it relates to the rights of Indians to pass the border), Article 9 and Article 10. ) (on file with the authors). 22 GOV T OF CANADA, Canada Treaty Information (last modified Mar. 3, 2011), (last visited Sept. 14, 2013). 23 As such, it remains unclear as to whether the DOS considers the Jay Treaty to have been entirely abrogated by the War of 1812, with Jay Treaty rights having been revived by the Treaty of Ghent, or whether it considers the right to free passage to have been permanent in character and not abrogated by war, with the Treaty of Ghent serving to reaffirm rights already in place. U.S. DEP T OF STATE, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2012, 37, 288 (Jan. 1, 2012), available at (last visited Sept. 14, 2013). DOS highlights the invalidity of Jay Treaty rights with regard to customs and duties with a citation to Akins v. United States, 551 F.2d 1222 (C.C.P.A. 1977). 24 from Robert Chapman, Treaty Information Manager, Foreign Commonwealth Office, United Kingdom to Greg Boos (Aug. 1, 2013) (on file with the authors) (noting the Government of Canada s Department of External Affairs 1927 compilation, TREATIES AND AGREEMENTS AFFECTING CANADA IN FORCE BETWEEN HIS MAJESTY AND THE UNITED STATES OF AMERICA WITH SUBSIDIARY DOCUMENTS , which states in a note on page viii: Attention may be drawn to the view of the British Government as to the affect [sic] of the war with the United States of upon previously existing treaties between the two countries, declared by Earl Bathurst, His Majesty s Principle Secretary of State for Foreign Affairs, in a note addressed to Mr. John Quincy Adams, the United States Minister in London, on the 30 th October, The United States in that year having supported a pretension for their citizens to continue the enjoyment of fishing privileges within British sovereignty conferred by the Treaty of 1783 on the ground that the Treaty was of a peculiar character and could not be abrogated by a subsequent war between the parties, Lord Bathurst in repudiating the pretension employed the following language: To a position of this novel nature Great Britain cannot accede. She knows of no exception to the rule that all 4

11 produced by the British Foreign Office in 1823 briefly characterizes the Jay Treaty as [n]ull, not revised at last peace, nor since. 25 Thus, it appears that the U.K. considers the Jay Treaty to have been abrogated by the War of Whether or not the Jay Treaty was abrogated by the War of 1812 and revived by the Treaty of Ghent, the U.S. continued to recognize the Indians right to pass across the border freely until enactment of the Immigration Act of 1924 (Act of 1924), which provided only those eligible for citizenship could enter the U.S. 26 Because Indians were ineligible for citizenship because of racerestricted naturalization laws dating back to 1790, 27 the Act of 1924 barred their entry to the U.S. 28 Shortly thereafter, the Bureau of Immigration 29 began deporting ABCs who had not registered as aliens or obtained immigrant visas, based on its determination these Indians were inadmissible. 30 In the 1927 McCandless case, an ABC, arrested and ordered deported for entering without complying with U.S. immigration laws, asserted a Jay Treaty rights defense in a federal court challenge to the Department of Labor s policy. 31 In defense of its position, the Department of Labor argued that the Treaties are put an end to by a subsequent War between the same Parties. (See British and Foreign State Papers, Vol. 7, p. 94)). 25 Id. The Jay Treaty is not included in the volume s index as being either wholly or partly in force, and Mr. Chapman could find no records to show any further action with respect to this agreement. 26 Immigration Act of 1924 ch. 190, 13(c), Pub. L. No , 43 Stat. 153 [hereinafter Act of 1924]. The Immigration Act of 1917 had exempted Indians from tariffs applicable to aliens, but had not provided for free passage. 39 Stat Act of March 26, 1790, ch. III, 1, Stat. 103 (restricting citizenship to free white person[s] ); Act of 1924, supra note 26 ( No alien ineligible to citizenship shall be admitted to the United States... ). Although the Act of 1790 was repealed by subsequent naturalization acts in 1795 and 1798, no relevant change was made regarding this restriction until the Fourteenth Amendment in See U.S. Const. amend. XIV, 1 ( All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside ) (emphasis added). However, [t]he specific meaning of the language of the clause was not immediately obvious. In 1884 the United States Supreme Court in Elk v. Wilkins held that children born to members of Indian tribes governed by tribal legal systems were not U.S. citizens. 112 U.S. 94, 102 (1884) ( Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof, within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. ). It wasn t until 1924 [that] Congress extended citizenship to all Indians by passing the Indian Citizenship Act, 43 Stat. 253, ch See LIBRARY OF CONGRESS, Fourteenth Amendment and Citizenship, (last visited Sept. 14, 2013); see also NebraskaStudies.org, 1924 Indian Citizenship Act, (last visited Sept. 14, 2013). Of course, the Indian Citizenship Act only applied to noncitizen Indians born within the territorial limits of the United States. Indian Citizenship Act, 43 Stat. 253, ch Therefore, American Indian tribal members born in Canada were still excludable as being ineligible to naturalize under the Act of Act of 1924, supra note 26, at ch. 190, 13(c) ( No alien ineligible to citizenship shall be admitted to the United States.... ). 29 Both the Bureau of Immigration and the Bureau of Naturalization were governed by the Department of Labor from See U.S. DEP T OF HOMELAND SEC. CITIZENSHIP AND IMMIGRATION SERVS., See Our History, (last visited Sept. 14, 2013). 30 Akins v. Saxbe, 380 F. Supp. 1210, 1214 (D. Me. 1974). 31 See United States ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D. Pa. 1927) aff'd 25 F.2d 71 (3d Cir. 1928). The defendant in McCandless, Paul Diabo, was a full-blooded Iroquois born on a reservation of that tribe in the dominion of 5

12 War of 1812 had abrogated the Jay Treaty. 32 It relied on the general principle that war between nations ends all prior treaty rights, and those rights are only reborn if a new treaty provides them. 33 On appeal, the Court found for the Indians. 34 It reasoned that treaties stipulating permanent rights, professing to aim at perpetuity, do not end upon occurrence of war, but are merely suspended until the war ends and subsequently revived when peace returns. 35 Because Article III of the Jay Treaty grants the right to freely cross the border in perpetuity, the right is permanent in character; thus, the War of 1812 did not abrogate the Jay Treaty. 36 Further, in 1815, the U.S. and Great Britain entered into the Treaty of Ghent, which again recognized the Indians prerogative to move freely across the border, removing any doubt as to the existence of that right. 37 B. A determination based on racial considerations Shortly after the McCandless decision, Congress codified the Indians right of free passage across the border with the Act of April 2, 1928 (Act of 1928): [T]he Immigration Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption. 38 This provision remained in effect until 1952, when Congress enacted the Immigration and Nationality Act (INA). INA 289, modified the language of the Act of 1928 by replacing the adoption provision with a bloodline requirement: Canada. Diabo first entered the U.S. in 1912, and subsequently thereafter until In 1925 he was arrested on a warrant submitted by the Commissioner of Immigration for the Port of Philadelphia for allegedly entering the U.S. without complying with its immigration laws. It is unclear from the record what the charge of inadmissibility was; however, based on the timing of his case, it is not unlikely that it was because he was found excludable as being ineligible to naturalize. He was ordered deported but later successfully challenged the order as contrary to the Jay Treaty. 32 United States ex rel Diabo v. McCandless, 18 F.2d 282, 283 (E.D. Pa. 1927); McCandless v. United States ex rel Diabo, 25 F.2d 71, 72 (3d Cir. 1928). 33 Supra note McCandless v. United States ex rel Diabo, 25 F.2d 71, 73 (3d Cir. 1928). 35 Id. 36 Id. 37 Id. at Act of April 2, 1928, ch. 308, 45 Stat. 401, 8 U.S.C. 226a (2006) [hereinafter Act of 1928]. Notably, this is the first time the phrase American Indians born in Canada appears in the immigration statutes. See also Akins, 380 F. Supp. at 1220 ( The Congressional debates, 69 Cong.Rec , 70th Cong., 1st Sess. (March 29, 1928), indicate that the purpose of the 1928 legislation was to correct by statute the Department of Labor's erroneous application of the 1924 Act to American Indians and to reaffirm the right of these Indians to free mobility into and within the United States, a right which had been acknowledged by the Department prior to the 1924 Act and had been recently recognized by the decision of the District Court in McCandless. ). Cf. Paul Spruhan, The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in the United States Immigration Law, 85 N.D. L. Rev. 301, 309 (2009) (noting that Congress had never intended the nationality restrictions of 1924 to impede the passage rights of Canadian Indians). 6

13 Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race. 39 Although there was no statutory bloodline requirement prior to the 1952 enactment of the INA, a 1942 Board of Immigration Appeals (BIA) case makes evident the government had been moving in that direction for at least a decade. Matter of S 40 involved a white Canadian woman married to an Indian who wished to be considered an Indian under Canada s Indian Act, 41 making her eligible for free passage into the U.S. The BIA considered whether an alien within the terms of the Act of 1928 should be determined by blood, or alternatively, legal membership in an Indian tribe. 42 Ultimately, it reached the conclusion that the determination should be based on political (i.e., tribal membership) rather than ethnological considerations, 43 despite government assertions that only persons of American Indian blood should be beneficiaries of the Act of In the 1947 opinion U.S. ex rel. Goodwin v. Karnuth, a Federal District Court analyzed the term Indian. 45 After noting the term was not defined in United States Code (U.S.C.) sections dealing with immigration, the court looked to other sections of the Code defining the term. It noted the definition of Indian used in 25 United States Code, Chapter 14, which governs an array of issues pertaining to Indian peoples and land: The term Indian as used in [this Act] shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction... and shall further include all other persons of one-half or more Indian blood. 46 The court then cited the canon of statutory interpretation that Congress may well be supposed to have used language in accordance with the common understanding, 47 and that [t]he popular or received import of words furnishes the general rule for the interpretation of public laws Immigration and Nationality Act of 1952, ch. 477, 289, 66 Stat. 234, 8 U.S.C (2006) [hereinafter INA]). 40 Matter of S., 1 I. & N. Dec. 309 (BIA 1942). 41 Indian Act, R.S.C. 1927, c. 98 (defining Indian to include [a]ny woman who is or was lawfully married to [any male person of Indian blood reputed to belong to a particular band]. ). 42 Matter of S., 1 I. & N. Dec. at Id. at Id. See also supra note United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 661 (W.D.N.Y. 1947). 46 Id. (emphasis added) (citing 25 U.S.C. 479). The court further quoted the definition: For the purposes of said sections, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. Id. The court also looked to 48 U.S.C. 206, dealing with territories and insular possessions, which provided a short and simple definition: Indians: Natives with one-half or more Indian blood. Id. Although there is no definitive legislative or regulatory history on the matter, it is reasonable to assume that the drafters of 289 relied on this definition. 47 Id. at 663 (quoting Union Pacific R. Co. v. Hall, 91 U.S. 343, 347 (1875), citing United States v. Wurts, 303 U.S. 414, 417 (1938)). 48 Id. (quoting Maillard v. Lawrence, 57 U.S. 251 (1853), citing Woolford Realty Co. v. Rose, 286 U.S. 319, 327 (1932), and Old Colony Railroad Co. v. Commissioner, 284 U.S. 552, 560 (1932)). 7

14 Applying this canon, the court determined that the words American Indians born in Canada, found in [the Act of 1928] must be given a racial [rather than political] connotation. 49 It then addressed the second clause of that Act, which read: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption. 50 The court reasoned that inclusion of the second clause means that such adoption does not make the adoptee an American Indian by blood, entitling him to free entry under the first clause. One whom nature has not made an American Indian cannot be made one by adoption in some Indian tribe or family. 51 In Matter of M the BIA in 1951 concluded only individuals with greater than 50% Indian blood are entitled to the benefits of the Act of 1928; the respondent, who the court conceded was exactly 50% Indian blood, was therefore deportable. 52 The court cited Goodwin for the proposition that a racial, rather than political, test should apply. 53 It then relied on the racial restrictions of the naturalization laws and a line of court decisions holding that a person, one of whose parents is white and the other of a race ineligible for naturalization is not eligible for naturalization to support its conclusion that the respondent was not an ABC within the meaning of the Act of These opinions, and the statutory definition of Indian interpreted in Goodwin, were published after the Act of 1928 (which did not contain a blood quantum requirement) and prior to the 1952 enactment of the INA (which did). Although there is no definitive legislative history on the matter, the drafters of INA 289 were likely cognizant of this reasoning when they removed the adoption language from the Act of 1928 and expressly replaced it with the blood quantum requirement. Beyond this, Congressional reasoning for retaining the racial basis for ABC classification remains unclear. 55 C. No reciprocal right to enter Canada The Canadian government holds the Jay Treaty does not affect the admissibility of U.S.-born Indians to Canada. 56 Rather, admissibility of all non-citizens to Canada is governed by the 49 Id. 50 Id. 51 Id. 52 Matter of M., 4 I. & N. Dec. 458, 460 (BIA 1951). 53 Id. at Id. at Spruhan, supra note 38, at (noting that general counsel for the INS at the time had no idea why the blood quantum requirement was added). One possibility for retention of the bloodline requirement may be the then national policy of Indian termination, which began in the 1940s and was embraced by the Eisenhower administration from See Ralph W. Johnson, Fragile Gains: Two Centuries of Canadian and United States Policy Toward Indians, 66 WASH. L. REV. 643, 662 (1991). The United States identified assimilation and integration as the official rationale for the termination policy, but there is evidence that the desire to reduce federal expenditures for Indian nations was a major motivation for the termination acts. Robert T. Coulter, Termination, Native Land Law 8:2 (2012 ed.) (citation omitted). The bloodline requirement serves to disqualify many from status as ABCs. 56 See Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R

15 Immigration and Refugee Protection Act, 57 which does not incorporate Jay Treaty rights. Although the Canadian Immigration Act does not contain a counterpart to INA 289, it states that every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a... registered Indian. Despite this broad language, the registration requirements of the Indian Act have proven difficult, and Canadian courts have declined to broaden its applicability; thus U.S.-born Indians are not extended a reciprocal right of entry to Canada under the Jay Treaty. There have been several important cases regarding the continuing viability of Article III of the Jay Treaty in Canada. In 1956, the Supreme Court of Canada in Francis v. The Queen 58 unanimously held that a treaty such as the Jay Treaty is not enforceable in Canada without enabling legislation: 59 [T]reaty provisions affecting matters... which purport to change existing law or restrict the future action of the legislature... in the absence of a constitutional provision declaring the treaty itself to be the law of the state, as in the United States, must be supplemented by statutory action Although Parliament has not enacted enabling legislation to incorporate Jay Treaty provisions into Canadian law, Francis suggests despite the passage of time, it may not be too late to do so. 61 If Parliament should at some future date enact the appropriate provision of the treaty, the right enjoyed by ABCs to enter freely into the U.S. would arguably be reciprocated to U.S.-born Indians. While Canada does not recognize a reciprocal right of entry for U.S.-born Indians to that which ABCs enjoy when entering the U.S., Canadian courts have recognized and protected an aboriginal right to freely pass the border. 62 Despite a striking similarity to the rights in force in the U.S. under 57 Immigration and Refugee Protection Act, 2001 S.C. ch. 27, (Division 3, Entering and Remaining, 19(1) (Can.)). 58 Francis v. The Queen, [1956] S.C.R While the case involved customs issues rather than the right of U.S.-born Indians to cross in to Canada, both issues fall under the Jay Treaty; therefore, its language is important and relevant to the admissibility of U.S.-born Indians into Canada. 59 In an interesting side-note, the U.S./Canada border itself was never codified by legislation in Canada. See Phil Bellfy, The Anishnaabeg of Bawating: Indigenous People Look at the Canada-US Border, in BEYOND THE BORDER: TENSIONS ACROSS THE FORTY-NINTH PARALLEL IN THE GREAT PLAINS AND PRAIRIES 7 (Kyle Conway & Timothy Pasch eds., McGill- Queens Univ. Press 2013) (citing David T. McNab, Borders of Water and Fire: Islands as Sacred Places and as Meeting Grounds, in ABORIGINAL CULTURAL LANDSCAPES (Jill Oakes and Rick Riewe eds., Winnipeg: Aboriginal Issues Press 2004)). Logically then, it is inconsistent for Canada to decline to recognize the Jay Treaty because of a lack of enacting legislation, but choose to recognize the U.S./Canada border, which was also created by treaty and also not enacted by legislation. 60 Francis v. The Queen, [1956] S.C.R The Francis decision may be subject to attack. In Sappier v. Canada, [1989] 15 A.C.W.S. (3d) 315, an Indian brought an action for duty-free carriage of personal goods into Canada from the United States pursuant to the Jay Treaty. The underlying theory of the case was that the recently adopted Canadian Charter of Rights and Freedoms guarantees previously negotiated treaty rights to Indians despite the absence of enacting legislation. In the Sappier case, the trial court declined to grant the government s motion for summary judgment because it could not find that the plaintiff s cause of action was clearly specious. 61 Francis v. The Queen, [1956] S.C.R See, e.g., R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R

16 the Jay Treaty, these rights are not rooted in any treaty, but are rather protected by Canada s constitution 63 in Part II of the Constitution Act, 1982 (Constitution Act). 64 Section 35(1) of the Constitution Act recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. 65 Subsection (2) defines aboriginal peoples of Canada to include the Indian, Inuit, and Métis peoples of Canada. 66 Because Canada has not enacted the provisions of the Jay Treaty, Canadian courts have declined to recognize Jay Treaty rights as existing treaty rights under Section 35; however, it is within Section 35 that Canadian courts find authority to recognize existing aboriginal rights. In 1990 the SCC decided R. v. Sparrow, 67 one of the first cases following the enactment of the Constitution Act to discuss the rights of aboriginal peoples in light of Section 35. There, the Court held that Section 35(1) should be given a generous and liberal interpretation in favor of aboriginal peoples. 68 It declared that under Section 35(1), the government cannot extinguish an aboriginal right without a clear intention to do so, 69 and that the government may regulate or infringe on such rights only if the interference meets the test for justification laid out by the Court. With these considerations in mind, it held there are four determinations a court must make when analyzing a claim under Section 35(1): (1) whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right ; (2) whether that right was extinguished prior to the enactment of s. 35(1) ; (3) whether that right has been infringed ; and (4) whether that infringement was justified. 70 This test continues to be employed by the SCC when analyzing 35(1) claims. In the 1996 case of R. v. Van der Peet, the SCC provided a detailed analysis of the substantive rights recognized and affirmed by Section 35(1). 71 The Court described Section 35(1) as the 63 Generally, the Canadian constitution is understood to comprise two statutes: the Constitution Act, 1867 (British North America Act or BNAA) and the Constitution Act, Additionally, Section 52 of the Constitution Act, 1982, incorporates into Canada s constitution approximately 30 legislative texts and orders referred to in its schedule. Part II of the Constitution Act, 1982 sets out the rights of Aboriginal peoples. Government of Canada: Justice Laws Website, The Third Schedule: Provincial Public Works and Property to be the Property of Canada (last modified Aug. 30, 2013), (last visited Sept. 14, 2014). 64 Rights of the Aboriginal Peoples of Canada, Part II of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.). Quebec has not yet consented to the adoption of the Constitution Act, 1982, but this is not a requirement for enactment. See Re: Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R Rights of the Aboriginal Peoples of Canada, supra note Id. 67 R. v. Sparrow, [1990] 1 S.C.R Id. at Note the similarity to the concept that Congress cannot abrogate a treaty without evidencing a clear intent to do so. See Vogel, supra note R. v. Gladstone, [1996] 2 S.C.R. 723, 742 (providing a summary of the 4-part Sparrow analysis). 71 R. v. Van der Peet, [1996] 2 S.C.R The Court s approach to its analysis was based on [t]he French version of the text, prior jurisprudence of this Court and the courts of Australia and the United States, academic commentators and legal literature. Id. at That same year, the Court in R. v. Gladstone reaffirmed the tests in Sparrow and Van der Peet, but held that Sparrow should not be dispositive on the question of priority, at least where the aboriginal right in question does not have the internal limitation which the right at issue in Sparrow did. R. v. Gladstone, [1996] 2 S.C.R. 723,

17 constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown. 72 The Van der Peet Court articulated a test for identifying aboriginal rights the integral to a distinctive culture test. This test directs that in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. 73 Under the integral to a distinctive culture test, a practice, custom or tradition must be of central significance to the aboriginal society in question one of the things which made the culture of the society distinctive. 74 The Court concluded that aboriginal rights must be based on those that existed prior to contact with European society. 75 Under the current parameters of the integral to a distinctive culture test, a U.S.-born Indian may assert an aboriginal right to enter Canada. Watt v. Liebelt, 76 which involved the aboriginal rights of a U.S.-born Indian, raised this question. The specific issue there was whether it could be contrary to an existing Aboriginal right of an Aboriginal people of Canada, as guaranteed in the Constitution, for an Aboriginal person who is [an American citizen], and neither a Canadian citizen nor registered under the Indian Act of Canada, to be ordered to depart from Canada for a crime committed [in Canada]. 77 While the Court of Appeal did not ultimately reach a decision on the issue, it quashed the order of deportation and remanded the case for further fact-finding on the tests previously established in Sparrow and Van der Peet. 72 R. v. Van der Peet, [1996] 2 S.C.R. 507, Id. at 527. The Court employed this test as the starting point for the tests laid out by the Court in Sparrow. 74 Id. at 509 ( A court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive) or at those aspects of the aboriginal society that are only incidental or occasional to that society. ). 75 Id. at The Court outlined ten factors to consider when applying the integral to a distinctive culture test: Courts must take into account the perspective of aboriginal peoples themselves.... Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right... In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question [it was one of the things that truly made the society what it was]... The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact [prior to the arrival of Europeans in North America]... Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims... Claims to aboriginal rights must be adjudicated on a specific rather than general basis [must be specific to the particular aboriginal community claiming the right]... For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists... The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct... The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence... Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples. 76 Watt v. Liebelt, [1999] 2 F.C Id. 11

18 Finally, in Mitchell v. M.N.R., 78 the SCC heard an appeal which involved the appellant s asserted rights under the Jay Treaty. The case involved the right of the Mohawks of Akwesasne to freely cross the U.S./Canada border without paying customs duties on their personal goods. 79 The Mohawks asserted the same argument in the Canadian courts that proved so unsuccessful in the United States namely that the Treaty of Ghent and the Jay Treaty are still in force guaranteeing the rights of Indians to freely cross the border and transport goods duty free. 80 The appellant argued that Section 35(1) protects the treaty rights of Canada s aboriginal people, including the rights preserved under the Jay Treaty. 81 Although the Canadian Federal Court of Appeal held that the Treaty of Ghent was inapplicable to the Mohawks and the First Nations, it agreed that the Mohawks possessed a constitutionally protected aboriginal right to freely pass and re-pass the border and to transfer personal goods across the border duty free. 82 Moreover, the Canadian Federal Court of Appeal upheld the lower court decision, affirming the Mohawk right to cross the U.S./Canada border and transport personal goods duty free, 83 subject to limitations based on evidence of the traditional range of Mohawk trading. 84 However, the SCC ultimately held that the asserted aboriginal right had not been established by the evidence presented in the lower courts, and ordered the respondent to pay duty on the goods imported into Canada. 85 Although this decision was disappointing to the Mohawk, it was specific to the facts, leaving the door open for future cases in which such an aboriginal right may be established by the evidence. The rights of ABCs are firmly settled in the U.S. under INA 289, rooted in the Jay Treaty. As the foregoing discussion suggests, while there is no specific right reciprocated by Canada for U.S.-born Indians, the rights of aboriginal peoples under Canadian law are still evolving, and may eventually extend to this population. 78 Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R Leah Castella, The United States Border: A Barrier to Cultural Survival, 5 TEX. F. ON C.L. & C.R. 191, (2000). 80 Id. See also infra Part IV.C. 81 Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R Id. 83 Id. 84 Id. 85 Id. 12

19 A. Scope II. Eligibility Bona fide ABC status turns on a racial metric the single remaining example of such a standard in U.S. immigration law. Eligibility for Jay Treaty rights is a matter of ethnic lineage rather than political affiliation with a tribe. 86 Even prior to the INA, courts had held that the phrase American Indians born in Canada designated a racial, rather than political test. 87 To qualify as an ABC, an individual must possess at least 50 per centum blood of the American Indian Race (bloodline requirement). 88 Tribal membership alone is inadequate to demonstrate an individual s qualification as an ABC because membership does not require a 50% blood quantum. 89 Likewise, an individual s self-identification or recognition in the community as an Indian is inadequate. 90 Conversely, an individual could lack self-identity or political standing in a tribe as an Indian, yet qualify as an ABC in light of blood lineage. 91 Further, even when a Canadian-born individual s Indian status in Canada was lost upon marriage to a white person under 14 of the Indian Act of Canada, 92 she did not lose her status as an ABC. 93 A 86 For a discussion of why such an eligibility criterion might be subject to constitutional challenge, see Spruhan, supra note 38, n. 324 (explaining how the race-based classification might fail a strict scrutiny analysis despite Congress s plenary powers to regulate both Indian affairs and immigration). 87 United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 663 (W.D.N.Y. 1947). For a passionate argument against race-based focus on tribal sovereignty see John R. Snowden et al., American Indian Sovereignty and Naturalization: It s a Race Thing, 80 NEB. L. REV. 171, 175 (2001) ( If, in matters of American Indian sovereignty, federal Indian law refuses to recognize an adoption or naturalized member of a Native nation who is without some Indian blood or descent, then one should ask whether this disrespect of sovereign power is anything more than a mask for colonialism and racism. ). 88 INA, supra note 39, at 289, 8 U.S.C See also 8 C.F.R ( The term American Indian born in Canada as used in section 289 of the [Immigration and Nationality] Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. ). According to one commentator, blood quantum was first introduced by colonialists in the early 18th Century as a means of restricting the rights of anyone deemed to be more than 50% Indian. As Indians began to assimilate more thoroughly into Western society, the metric became a mechanism through which tribes could identify other members. A byproduct of assimilation has been the gradual decline of blood quantum in Indian groups. If this decline continues as projected, fewer and fewer Canadian-born Indians will possess the requisite blood quantum to benefit from INA 289. See Paul Adams, Blood Quantum Influences Native American Identity, BBC News, July 10, 2011, (last visited Sept. 14, 2013). 89 U.S. DEP T OF HOMELAND SEC. CITIZENSHIP AND IMMIGRATION SERVS., Adjudicator s Field Manual, (a) (2013) [hereinafter AFM]. 90 See United States v. Curnew, 788 F.2d 1335, 1337 (8th Cir. 1985) ( whether Canadian-born alien who has been arrested and deported from the United States identifies himself as or is viewed by others as Indian is not determinative of whether he possesses at least 50 per centum American Indian blood so as to be able to reenter United States without consent of the Attorney General. ). 91 See infra Part II.B. 92 Indian Act, R.S.C. 1927, c United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 663 (W.D.N.Y. 1947). In present day Canada, marriage to a non-indian no longer operates to divest an individual of Indian status. The 1985 Amendment to the Indian Act, R.S.C. 1985, c. I-5, eliminated disenfranchisement by marriage; individuals who lost their Indian status in that manner became entitled to reinstatement. See PARLIAMENT OF CANADA, Indian Status and Band Membership Issues (Feb. 1996, rev. Feb. 2003), (section B.1) (last visited Sept. 14, 2013). Furthermore, in 2011, the Gender Equity in Indian Registration Act came into force. It ensures that eligible grand-children of women who lost status as a result of marrying non-indian men will become entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons will become newly entitled to registration. ABORIGINAL AFFAIRS AND NORTHERN 13

20 derivative spouse or child does not qualify for Jay Treaty rights unless she meets the definition of an ABC in her own right. 94 i. Dependents Jay Treaty rights are not available to the spouse or child (derivatives) of an ABC unless the individual meets the bloodline requirement. 95 An ABC who resides in the U.S. is regarded as lawfully admitted for permanent residence 96 and can therefore file an I-130 petition for a derivative. 97 Before filing the I-130 the ABC petitioner should establish her status as an ABC, following the procedures described below in Part V. Unless the derivative is already present in the U.S. in a bona fide non-immigrant status, she probably cannot pursue adjustment of status. 98 Hence, the derivative will need to pursue an immigrant visa by way of consular processing. Strict numerical limitations, of course, apply to family-based visas. The second preference category spouses and children, and unmarried sons and daughters of permanent residents are currently backlogged over seven years. 99 ii. Bloodline exemption for pre-ina entrants The regulations recognize a grandfathering exemption from the bloodline requirement, though the exemption may be without practical application. An ABC is said to be exempt from the bloodline requirement if he entered the U.S. between April 2, 1928 and December 24, 1952, and has maintained residence in the U.S. during that period. 100 The person must have qualified for entry as an ABC under the statute enacted on April 2, Yet while the 1928 statute contained no express bloodline requirement, the statute has been construed by courts to contain such a requirement. 102 It therefore seems unlikely the bloodline requirement exemption will be a practical avenue for relief. DEVELOPMENT CANADA, Gender Equity in Indian Registration Act (last modified Feb. 11, 2013), (last visited Sept. 14, 2013). 94 See infra Part II.B C.F.R ( term American Indian born in Canada... does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood ) C.F.R U.S. DEP T OF HOMELAND SEC. CITIZENSHIP AND IMMIGRATION SERVS., Green Card for an American Indian Born in Canada (rev d Feb. 28, 2011), (last visited Sept. 14, 2013) (advising that an ABC may file an I-130, Petition for Alien Relative, after obtaining proof that the individual is a permanent resident of the U.S.). 98 Cf. INA, supra note 39, at 245(a) (setting forth general eligibility rules for adjustment of status). 99 U.S. Dep t of State Bureau of Consular Affairs, Visa Bulletin, Vol. IX, No. 60, at 5 (Sep. 2013) C.F.R Id. See 45 Stat , 8 U.S.C 226a (1928). 102 United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 663 (W.D.N.Y. 1947). 14

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